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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Thursday, April 29, 2004 ::
    A currently circulating abstract reads as follows:

    "Unity of the Graveyard and the Attack on Constitutional Secularism"
    Brigham Young University Law Review, 2004

    Florida State University
    College of Law

    Document: Available from the SSRN Electronic Paper Collection:

    Paper ID: FSU College of Law, Public Law Research Paper No. 105

    "Once it is conceded that a political structure defined by religious principles will exclude those who do not choose to adopt those principles, then there is little left in the search for religious unity. If cultural and political unity is a desirable goal, therefore, we must search for a secular alternative to the religious unity model. I sketch the outlines of two such secular options in this essay. One, which I will term the affirmative case for constitutional secularism, takes as its starting point the essential functions of a democracy, and uses those essential functions as the lodestar for political unity. The second, darker model, which I will term the negative case for constitutional secularism, is based on the indisputable recognition that the very factors that make religion exclusive and disunifying are also the factors that can lead diverse groups of religious adherents to give up their quest for unity through dominance in exchange for a guarantee of survival. After exploring in a bit more detail the nature of religious exclusivity, I turn to the a fuller explanation of the two options for achieving real - i.e., secular - national unity."

    Well, I don't concede that "a political structure defined by religious principles will exclude those who do not choose to adopt those principles", at least not without further definition of "exclude".

    But let me concede it for now, and then ask: why would unity based on cultural or political principles have a less oppressive "excluding" effect than unity based on religion? I will read Prof. Gey's article with interest, to find out what these "cultural and polititical principles" are that can supposedly be enforced -- excuse me, can be made the basis of national unity -- without stepping on the necks of those "who do not choose to adopt those principles".

    On a related note, should this be of concern to us if we want to protect those "who do not choose to adopt" the "unifying" princples of the state?

    :: David M. Wagner 12:15 PM [+] ::
    :: Thursday, April 22, 2004 ::

    Conerning this paragraph in Question Two of your exam:

    Second, regardless of how you come down on the standing issue, discuss how Rick's case will fare if the court decides he does have standing and hears his case on the merits; i.e., discuss his argument that Congress lacks power, under either the Commerce Clause or the 14th Amendment, to pass the partial-birth abortion ban.

    The "either/or" construction is NOT -- am I clear? NOT -- an invitation to you to pick one or the other.

    Read it again. Rick's argument = "Congress lacks power, under either the Commerce Clause or the 14th Amendment, to pass the partial-birth abortion ban". You are asked to discuss "Rick's argument". Since Rick's argument includes both of the sources of power that Congress is relying on, obviously you have to discuss both.

    The reason I included the words "under either the Commerce Clause or the 14th Amendment" was to remind you to discuss both, not to give you the option of choosing one and ignoring the other.


    :: David M. Wagner 11:09 AM [+] ::
    :: Wednesday, April 21, 2004 ::
    "It seems rather contrary to an idea of a constitution with three branches that the executive would be free to do whatever they want without a check."

    -- Justice Stephen Breyer, in today's oral argument in the Guantanomo detainees' habeas corpus case

    Oh it does, does it? Some of us feel rather the same way about the judiciary....

    :: David M. Wagner 12:06 AM [+] ::
    :: Thursday, April 15, 2004 ::

    One of you wrote in to ask:

    I am pretty confused about the anti-subordination and anti-classification arguments. I understand that these are two ways to read and try to understand the equal protection clause, but that's about it. Also, you mentioned congruence and proportionality and I wasn't sure how that fit in.

    You're right: these are two ways of understanding the Equal Protection Clause. They are not themselves arguments, but arguments can be made for and against each view.

    They are what you might call academic terms: I've never known the Court to use them. But when, say, O'Connor or Scalia says that all racial classifications by government are suspect, even when plausibly linked to a benign motive, they are reading the E.P. Clause as a strict rule against racial classifications.

    Likewise, when Marshall or Stevens or Souter says the Clause permits benign or remedial racial classifications, they are reading the clause as primarily a means of counteracting past racial subordination.

    "Congruence and proportionality" are the two restraints that the Court has put on Congress's use of its powers under Sec. 5 of the 14th Amendment, whenever Congress construes the content of Sec. 1 (citizenship, privileges or immunities, due process, equal protection) more broadly than the Court has done.

    So, two contrasting situations:

    1. Congress is using its Sec. 5 powers to enforce Sec. 1 within existing Supreme Court definitions of the Sec. 1 rights. In this case, no need for Congress to show "congruence and proportionality".

    2. Congress is using its Sec. 5 powers to ban something that has not been held by the Supreme Court to violating Sec. 1; or, even better, Congress is using its Sec. 5 powers to ban something that the Court has specifically said does not violate Sec. 1. (Example: Katzenbach v. Morgan, where the Court had previousely held that literacy tests as a prerequisite for voting do not violate Sec. 1, but Congress banned them anyway, invoking its Sec. 5 powers).

    To defend this statute, the government must be able to show that Congress's action was "congruent with" and "proportional to" an actually existing threat to some Sec. 1 right. Morgan was a case where Congress was able to make that showing; City of Boerne v. Flores was a case of the opposite, where the statute was far out of proportion to any threatened violation that Congress had been able to point to.

    Congruence and proportionality apply only when Congress is legislating under the powers it has under Sec. 5 of the 14th Amendment (or under one of the similar "congressional empowerment clauses" found in other amendments). It does not apply to Congress using its original powers (see esp. Art. I Sec. 8).

    Also, c & p do not apply to the states. The c & p limitation is ultimately a consequence of the principle that Congress's powers are enumerated rather than plenary. Since states have plenary powers, they need only worry about the substantive limitations placed on them by the 14th and other amendments. (But note: the 14th is now read as including the Bill of Rights and applying it as a limit against state governments as well as against the federal government.)

    :: David M. Wagner 11:40 AM [+] ::

    The exam will be available (and posted on Blackboard) on the morning of April 21, and due back by the end of the day on Tuesday April 27.

    All requests for variances from this timetable are hereby denied.

    Watch for announcements about review session(s) and an opportunity -- probably on the 21st -- to take the exam in a timed setting.

    :: David M. Wagner 11:24 AM [+] ::
    :: Wednesday, April 07, 2004 ::
    Amanda Strassner, blogger at World Magazine, has opted to attend Regent University School of Law, and tells you why here.

    :: David M. Wagner 8:32 AM [+] ::
    :: Tuesday, April 06, 2004 ::
    Fetuses feel pain, doctor testifies

    :: David M. Wagner 10:26 PM [+] ::
    :: Monday, April 05, 2004 ::
    MEDIEVAL ACADEMY OF AMERICA annual conference

    Well, you know, I am a member. I mean, I wasn't born a lawyer -- it just sort of happened. Anyway, here are some notes:

    Model Infernal Code

    I gave a paper (this was the proximate cause of my being there) on criminal mens rea as it relates to the categorization of sins in Dante's Inferno. My point was that while Dante considers intent to defraud more blameworthier than intent to kill, the worst of all is the combination of the two, such that the Ninth (and lowest) Circle of Hell actually punishes something closely akin to "first degree murder," with its overtones of calculating deliberation.

    Prof. Steven White, who specializes in medieval French romance (I mean medieval French poems about knights -- sheesh, I have to explain everything to you lawyers!), remarked that "treason" in the French romances seems to have the same homicidal aspect that I had identified as common to all the Ninth Circle sinners.

    Sentimental reunion

    The light was green on memory lane as I met again, for the first time in 20 years, folks who had been at one time somewhere within the orbit of historian John Boswell. Now, Prof. Boswell is best known for this book, and this one, and regular readers of this blog will assume -- and they'll be right -- that I agree with few, if any, of his conclusions. And it's not only a matter of conclusions: there's also a matter of -- if not culture wars, then at least -- a cultural tiff.

    Prof. Boswell is no longer among us.

    ...e quant' io l'abbia in grado, mentr' io vivo
    convien che ne la mia lingua si scerna.

    Informal talks were had about somehow organizing, or maintaining communications among, those who were influenced by Prof. Boswell in some way. That I certainly was: through his courses that I took, he introduced me to serious research in medieval history, and to medieval law. He also introduced me to Professors Robert Stacey, Robin Chapman Stacey, and Ralph J. Hexter, that last of whom had the thankless task of improving my Latin. Fortunately for Ralph, Hugh Thomas was also in that course.

    If part of the Boswellian legacy is learning to look past assumptions and engage with the unexpected, then something good may come of this project.

    Taking care of Byzness

    I attended several panels. I was very impressed by one about Byzantine iconography. It featured a paper by Krista Kotsis, grad student at the University of Washington), entitled "Beautiful Empresses," about how the the spinmeisters of old Constantinople used feminine pulchritude to promote veneration of the imperial couple as God's delegates. Harvard grad student Alicia Walker demonstrated Byzantine craftsmen's use of "pseudo-Kufic script" -- that's polite for "mock-Arabic" -- as a decorative motif when a note of "otherness" seems called for.

    I don't have time to write up all the panels I attended and folks I met; just two, real quickly:

    * Thomas Madden, Crusade scholar and chairman of the history department at St. Louis University -- read your articles in Crisis, NRO, etc., and very honored to meet you!

    * Students at Baylor: This fall, drop whatever you're signed up for and take any course you can with that new medieval literature professor, K. Sarah-Jane Murray. Besides being a freshly-minted PhD from Princeton, and having a lot of interesting things to say about St. James, St. Patrick, and the medieval narrative theme of the "holy foreigner," she also has an uncanny ability to keep a room spellbound, and a smile that could wake the dead and set them swing-dancing.

    :: David M. Wagner 4:03 PM [+] ::

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